On Wednesday, Donald Trump decided to attend the Supreme Court’s arguments over the birthright citizenship case, which will decide whether Trump can wipe away by royal decree the plain meaning of the Constitution and many decades of precedent to end the guarantee of citizenship to those born in the United States.
Trump is very angry at the high court. Earlier this week, he erupted on Truth Social, raging over the “STUPID” ruling against his tariffs—which was legally correct—and urging the “dumb” justices to side with him this time, or else. Trump’s rage drove him to show his face before the court in an obvious effort to intimidate the justices into doing his bidding.
Good. Trump’s presence will stamp his face all over this travesty. It will serve as a reminder that core to the Trump-MAGA project is the goal of ending the constitutional guarantee of equality of birth and replacing it with hierarchical citizenship dictated by heritage and blood. Let Trump remain firmly associated with this effort forever.
Fortunately, during Wednesday’s oral arguments, the justices treated Trump Solicitor General John Sauer with great skepticism. He had to defend Trump’s executive order, which would end automatic citizenship for large classes of American-born children with undocumented parents. But the justices seemed to reject the main arguments purporting to undercut the Fourteenth Amendment’s clear declaration that “all persons born or naturalized in the United States” and “subject to the jurisdiction thereof” are granted automatic citizenship.
For instance, the justices seemed skeptical of the administration’s argument that these children are not actually “subject to the jurisdiction” of the United States. That turns on an arcane recasting of the historical meaning of “jurisdiction” that’s contradicted by scholarship, legislative history, and court precedent. They also appeared to reject another Trump argument holding that the children’s citizenship is invalid because undocumented parents are not “domiciled” in, and lack “allegiance” to, the United States, a claim based on lawyerly hocus pocus.
“The fact that we heard skepticism from several of the Republican appointees, and not just the Democratic appointees, underscores just how uphill a battle this case really is for the Trump administration—and how likely he is to lose it,” Georgetown law professor Stephen Vladeck told me.
Trump has been gunning for birthright citizenship for a long time. During his first term, he raged that “we’re the only country in the world” that confers this status on babies born here, a ridiculous lie. The legal case against birthright citizenship has long been a fringe position, but after Trump won reelection and pushed it again, a few friendly scholars concocted arguments designed to make it seem respectable. As Jamelle Bouie shows, their case is absurdly opportunistic and falls apart under scrutiny.
To understand the deeper intent of this project, it’s essential to grasp that Trump—and, tellingly, Stephen Miller—are attacking the Fourteenth Amendment from many different angles. Their main target: its core ideals of equality.
The birthright citizenship clause enshrines the core idea that all people born in the United States are free and equal by virtue of their birth, as legal scholar Akhil Reed Amar explains in his brief in this case. Their status is not decided by bloodline or heritage; undoing the guarantee of equality as a birthright would make the constitutional order “hereditary” and “caste-like.”
That’s exactly the goal sought by Trump and Miller. Note that Miller is privately working to get a red state to end publicly funded education for undocumented children. This would challenge another Supreme Court precedent—Plyler v. Doe—which requires such funding. It does so on the grounds that even the undocumented constitute equal persons before the law. The court ruled that ending this requirement would turn undocumented kids into a subordinate caste in a manner that violates—again—the Fourteenth Amendment.
Though one of these cases involves kids born here and the other involves undocumented kids, there’s a through line here: creating and reinforcing hierarchies based on heritage and blood. “Both cases are part of a long-term project to undo the Fourteenth Amendment’s commitment to equality,” Boston University law professor Jed Shugerman told me. “That project is about restoring racial hierarchy.”
Indeed, as Adam Serwer notes, the MAGA project aims for nothing less than creating a vast new subcaste of children who might forever remain “stateless.” That would evidently apply both to those brought here through no fault of their own and to those born here.
If it offends your sense of fairness that children should be punished for the alleged sins of their parents, well, you should know that Trump aims to do precisely this. When he raged over birthright citizenship this week, he attacked undocumented parents for the very act of having kids here, which he depicted as a scam perpetrated against our country by definition. This isn’t even a scam, to begin with. But in Trump’s twisted moral logic, rendering their kids stateless constitutes just punishment for it.
Trump’s presence in the Supreme Court, then, should be remembered in exactly these terms. Trump left the chambers after seeing the arguments go badly for him. Soon after, he exploded in fury one more time, perhaps sensing his power to force the court to ignore history and precedent to humor his whims isn’t what he thought.
If Trump loses this case—as most experts expect he will—that will stand as one final humiliation. Let’s hope that thanks to his appearance, his direct association with this repugnant effort to subvert the egalitarian core of American constitutionalism at its best will endure in the national memory—deep, deep into the future.
